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January 18, 2014

SCOTUS grants cert on pair of cell-phone search cases

As reported in this SCOTUSblog entry, "the Supreme Court agreed on Friday afternoon to rule on police authority to search the contents of a cellphone they take from an individual they have arrested." Here is more from Lyle Denniston's effective review of the new Fourth Amendment new technology cases now on the SCOTUS docket:

The Court accepted for review a state case and a federal case, involving differing versions of hand-held telephone capacity.

The Court rewrote the question in the state case — Riley v. California — to limit it to the constitutionality of the evidence actually used against the suspect at his trial. It granted without limitation the government appeal in the other case: United States v. Wurie....

Both of the new cases on cellphone privacy involve the authority of police, who do not have a search warrant, to examine the data that is stored on a cellphone taken from a suspect at the time of arrest. The two cases span the advance in technology of cellphones: the government case, Wurie, involves the kind of device that is now considered old-fashioned — the simple flip phone. The Riley case involves the more sophisticated type of device, which functions literally as a hand-held computer, capable of containing a great deal more personal information.

The state case involves a San Diego man, David Leon Riley, convicted of shooting at an occupied vehicle, attempted murder, and assault with a semi-automatic weapon. Riley was not arrested at the time of the shooting incident in August 2009; instead, he was arrested later, after he was stopped for driving with expired license plates. Police seized the cellphone he was carrying at the time of his arrest, and twice examined its contents, without a warrant.

The data turned up evidence identifying him as a gang member out to kill members of a rival gang. Other contents included a photo of him with a red car seen at the shooting site. Police were then able to trace calls, leading to a trail of evidence pointing to Riley as a participant in the shooting. No one positively identified him, but the data from the cellphone search was put before the jury, which convicted him of all three counts. He has been sentenced to fifteen years to life in prison....

The government case involves a South Boston man, Brima Wurie. In 2007, a police officer saw him make an apparent drug sale out of his car. The officer confronted the buyer, turning up two bags of crack cocaine. He partially identified his drug source.

Officers followed Wurie from the scene, and arrested him. He was then taken to a police station, where the officers retrieved two cellphones. One of the phones was receiving repeated calls from a number identified as Wurie’s home. The officers checked the phone’s call log. They traced him to his house. The officers deemed the fact that he had cellphones with him as an indication that he carried out drug dealing with the use of such a device.

He was convicted of being a felon who had a gun and ammunition, distributing crack cocaine, and possessing the crack with intent to distribute it He sought to block the use of the evidence taken from his cellphone, but that failed. He was convicted on all charges, and has been sentenced to 262 months in prison.

The U.S. Court of Appeals for the First Circuit struck down two counts of his conviction.

Although the two cases raise the same constitutional issue, the Court did not consolidate them for review, so presumably there will be separate briefing and argument on each. They probably would be argued one after the other, however. The Court did not expedite the briefing schedule, but they still are expected to be heard in April.

Though these two new cases are directly not about the defendants' underlying crimes and sentences, I cannot help but notice the notable differences in state and federal outcomes. The state defendant, Riley, was convicted of the very violent crimes of "shooting at an occupied vehicle, attempted murder, and assault with a semi-automatic weapon," will be eligible for parole in 15 years. The federal defendant, Wurie, was only convicted "being a felon who had a gun and ammunition, distributing crack cocaine, and possessing the crack with intent to distribute," but he has to serve nearly 20 years before having a chance at release from the federal pen.

After new revelations, should every defendant ever sentenced by Judge Cebull seek resentencing?

The question in the title of this post is prompted by this new AP report headlined " "Federal judge sent hundreds of bigoted emails," which is a summary of this lengthy report released on Friday by the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States. Here are the basics:

A former Montana judge who was investigated for forwarding a racist email involving President Barack Obama sent hundreds of other inappropriate messages from his federal email account, according to the findings of a judicial review panel released Friday.

Former U.S. District Judge Richard Cebull sent emails to personal and professional contacts that showed disdain for blacks, Indians, Hispanics, women, certain religious faiths, liberal political leaders, and some emails contained inappropriate jokes about sexual orientation, the Judicial Council of the 9th U.S. Circuit Court of Appeals found.

Many of the emails also related to pending issues that could have come before Cebull's court, such as immigration, gun control, civil rights, health care and environmental issues, the council found in its March 15, 2013, order. The investigation looked at four years of Cebull's personal correspondence sent from his official email account. Investigators also reviewed his past cases and interviewed witnesses.

The investigation found no evidence of bias in Cebull's rulings or sentences, and the witnesses generally regarded him as a "good and honest trial lawyer, and an esteemed trial judge," according to the report.

The 9th Circuit council issued Cebull a public reprimand; ordered no new cases be assigned to him for 180 days; ordered him to complete training on judicial ethics, racial awareness and elimination of bias; and ordered him to issue a second public apology that would acknowledge "the breadth of his behavior." The panel said impeachment was not warranted because Cebull did not violate federal or state law, though two of the judges on the council said they would have asked for his resignation.

But none of the sanctions took effect and the findings did not become public until Friday on the order of a national judicial review panel. Cebull announced his resignation March 29, two weeks after the judicial council issued its order. After Cebull retired May 3, the 9th Circuit council vacated its previous order and wrote a new one calling the complaints against Cebull "moot" because of his retirement....

Cebull himself and 10 others requested the misconduct investigation after The Great Falls Tribune reported Cebull forwarded an email in February 2012 that included a joke about bestiality and Obama's mother. Cebull apologized to Obama after the contents of the email were published. He told the 9th Circuit panel that his "public shaming has been a life-altering experience" and that he was "acutely aware that each day in my court is the most important day in someone's life."

Cebull was nominated by former President George W. Bush and received his commission in 2001. He served as chief judge of the District of Montana from 2008 until 2013.

I am quite surprised to hear that Judge Cebull sent so many inappropriate e-mail from his chambers, though I am not at all surprised that an investigation by other judges reached the (self-serving) conclusion that there was "no evidence of bias in Cebull's rulings or sentences." In my view, any defendant (especially any female or minority defendant) still sitting in federal prison unhappy with a past sentencing decision made by Judge Cebull could and should use this new report to at least request a focused review of any of his specific sentencing outcomes.

January 17, 2014

"Family to file lawsuit after troubled execution"... seeking what remedy?

The title of this post is the headline of this breaking news from my own Columbus Dispatch coming less than 24 hours after the great state of Ohio carried out an execution using a novel two-drug execution protocol. Here are the details:

The family of Dennis McGuire will file a federal lawsuit against the state of Ohio over his troubled execution yesterday. Amber and Dennis McGuire, the executed man’s children, scheduled a press conference this morning in Dayton to announce their intention to go to court. The suit will claim McGuire’s 8th Amendment rights under the U.S. Constitution to avoid “cruel and unusual punishment” were violated when he gasped for air, choked and struggled against his restraints for about 10 minutes before being declared dead at 10:53 a.m.

“Shortly after the warden buttoned his jacket to signal the start of the execution, my dad began gasping and struggling to breathe,” Amber McGuire said in a statement. “I watched his stomach heave. I watched him try to sit up against the straps on the gurney. I watched him repeatedly clench his fist. It appeared to me he was fighting for his life but suffocating.” McGuire’s children were witnesses at his lethal injection at the Southern Ohio Correctional Facility near Dayton.

McGuire, 53, was executed for the brutal 1989 murder of Joy Stewart, 22, who was newly married and 30 weeks pregnant at the time of her death. McGuire raped Stewart vaginally and anally, choked her, stabbed her in the chest, and slit her throat. He dumped her body in the woods near Eaton, Ohio, where it was found the next day by two hikers.

There was no clear indication that the drug combination — never before used in a U.S. execution — triggered McGuire’s death struggles. But Allen Bohnert, one of McGuire’s federal public defenders, called the execution a “failed, agonizing experiment by the state of Ohio.” McGuire died from an injection of midazolam, a sedative, and hydromorphone, a morphine derivative. The two drugs had never been used before in an execution in the U.S. The state switched to the new drugs because pentobarbital, the single drug used before, is no longer available as manufacturers will not sell it for use in executions....

Ohioans to Stop Executions called for an immediate death-penalty moratorium after what it called the “horrific events.”

I will be very interested to see the specifics of this federal lawsuit, and I am especially interested in the remedy that will be sought in this matter. Because the person whose constitutional rights were allegedly violated is now dead, I do not think any kind of injunction concerning future executions would be a possible remedy to seek. In addition, the family cannot make a wrongful death claim because McGuire's death was his lawful punishment. Consequently, it would seem the family can only be making a claim for damages based on the alleged pain McGuire suffered over a twenty minute period. (And, I do not believe the family can seek any kind of punitive damages under usual federal civil rights laws for state constitutional violations.)

"Political odd couples push sentencing reform" ... and have little to show so far

The title of this post is drawn from the headline of this Washington Post entry, with a dash of my cynicism added and explained after an excerpt:

At a time when partisans in Congress don't agree on anything, they have found one area where they can: Reforming America's sprawling and costly prison system. Nearly 30 years after creating mandatory sentences for drug offenses, an unlikely band of lawmakers is moving forward with their plans to fix what they say is a broken criminal justice system....

The Senate Judiciary Committee is working through several reform bills crafted by lawmakers from the liberal and conservative wings of the two parties to put together a plan, which, they say, will help alleviate the financial and humanitarian costs of the spending guidelines.

So who are these unlikely co-sponsors? Sens. Dick Durbin (D-Ill.) and Mike Lee (R-Utah) have joined forces and put together a bill that would give judges flexibility when they hand down sentences for nonviolent drug offenders. A House counterpart to the Durbin- Lee bill is co-sponsored by the unlikely duo of Reps. Raul Labrador (R-Idaho) and Bobby Scott (D-Va.). Another bill, sponsored by Sens. Patrick Leahy (D-Vt.) and Rand Paul (R-Ky.) would expand that judicial leeway to some non-drug related crimes.

"I think money is driving this debate to some extent but also honesty," Durbin said in an interview. "After 30 years we ought to take a look at these laws. These aren't the 10 Commandments."

Overcrowded prisons have been increasingly a strain on federal budgets, costing an estimated $60 billion per year. Since the mandatory minimum law was implemented in 1986, the prison population has exploded -- from around 58,000 in the late 1980s to more than 217,000 in 2012, according to the Department of Justice and the Bureau of Prisons.

“People are starting to see the unfairness, people who have been kept in jail, sometimes 10, 20, 30, even 50 years for a non-violent crime,” Paul said in an interview. “I personally think if you made a mistake, a youthful mistake, that when you serve your time, and the time should be a reasonable time, that you should be able to get back into society.”

The timing of a reform bill is still uncertain, but Leahy, who chairs the Senate Judiciary Committee, indicated in a statement that a mark-up was in the near future. "Doing nothing means cutting funding from law enforcement, victim services and crime prevention efforts -- doing nothing makes us less safe," he said. "We will soon be marking up legislation to address this important issue." Labrador said House Judiciary Chairman Bob Goodlatte (R-Va.) has agreed to have a hearing in the House on the issue this year....

It's not the first time this issue has brought the two sides together. The Fair Sentencing Act of 2010, that eliminated the sentencing disparity between crack and powder cocaine, was put together by Durbin and Alabama Republican Jeff Sessions as they worked out next to each other in the Senate gym. The bill eventually passed by unanimous consent.

I have grown more cynical and pessimistic about statutory sentencing reforms coming from Congress now that it has been almost a full year since Senators Leahy and Paul started pushing for mandatory minimum reform. It would seem all political, social and economic forces are in line for major statutory sentencing reform, and yet we continue to hear lots of talk about reform and little tangible action in Congress. Especially given that it took decades for crack reform talk to become the FSA, and given that the FSA was itself a pretty tepid and incomplete reform, I hope all this talk from Congress is not generating false optimism about significant statutory sentencing reforms coming from Congress.

That all said, I am much more optimistic that other federal sentencing players, especially the US Sentencing Commission and lower court judges, can and will be inspired by all the reform talk in Congress to take tangible action in courtrooms. Indeed, I think the very important new proposal to cut federal drug sentences across the board (basics here, commentary here) only came to happen because that politically cautious body sensed members of Congress would not be likely to vocally resist a reduction of drug sentencing guidelines.

January 16, 2014

Notable new research from Pew about the success of parole in New Jersey

Too often we only hear a lot about parole policies and practices when there is a high-profile story of some parolee committing some terrible crime following parole release. And, problematically, those kinds of headline-grabbing stories can lead to changes in laws and practices that might not be wise if and when broader information and data are considered.

In light of these realities, I am very pleased to have just stumbled across a good-news story about parole practices appearing in this little research report published by The Pew Charitable Trusts’ public safety performance project and titled simply "The Impact of Parole in New Jersey." Here is the report's overview:

Nearly 700,000 offenders were released from U.S. prisons in 2011. Ensuring their successful re-entry into the community remains a critical issue for public safety. A new analysis of New Jersey data, commissioned by The Pew Charitable Trusts, shows that inmates released to parole supervision are less likely to be rearrested, reconvicted, and reincarcerated for new crimes than inmates who serve, or “max out,” their full prison sentences and are released without supervision. The two groups return to prison at nearly identical rates, however, because parolees can be sent back for technical violations—such as failing drug tests or missing meetings—that are not associated with committing new crimes.

These findings demonstrate not only that supervision can make a decisive difference in controlling criminal behavior among released offenders, but also that technical revocations unrelated to new crimes reduce the cost savings of parole. This brief discusses the findings in depth and examines their implications for states’ corrections policies.

"If You Ain't in Prison, You Just Got Lucky: Luck, Culpability, and the Retributivist Justification of Punishment"

The title of this post is the title of this new paper by Kenneth Einar Himma now available via SSRN. Here is the abstract:

Thomas Nagel argues that the pervasive role that luck plays in conditioning behavior seems inconsistent with ordinary views about moral accountability and culpability. As many criminal justice practices seem to rely on these ordinary views, the pervasiveness of luck also seems inconsistent with the legitimacy of a number of criminal law practices. For example, the claim that people do not have direct control over the consequences of their acts and hence that the consequences of an act are conditioned by luck calls into question the legitimacy of the traditional practice of punishing unsuccessful attempts less severely than successful attempts; if the only difference between a successful and unsuccessful attempt is a matter of luck, then there can be no difference, other things being equal, in culpability between the two.

In this essay, I argue that the pervasive role that luck plays in conditioning a person’s acts calls into question the viability of retributivist justifications of punishment, which hold that punishment is justified insofar as deserved. A person is not culpable or deserving of punishment, according to ordinary views, for events beyond her control. But if the factors conditioning an agent’s act are all matters of luck beyond the agent’s control, then she is not deserving of punishment for the act. The pervasiveness of such luck seems inconsistent with retributivism and threatens not only differential punishment for successful and unsuccessful attempts. More significantly, it calls into question the very legitimacy of punishment itself. The problem of luck goes well beyond its implications for the law of attempts.

As reported in this new local article, headlined "Dennis McGuire executed using new 2-drug combination," the great state of Ohio has yet again pioneered and used a brand new execution protocol. Here are the details:

Dennis McGuire and his attorneys wanted his death to be pain-free. His lethal injection at 10:53 a.m. today appeared to be relatively calm and free of the panic and agony that McGuire’s attorneys feared would occur from the combination of drugs used together for the first time in a U.S. execution.

McGuire’s quiet, almost surreal death in a small, windowless room at the Southern Ohio Correctional Facility stood in bleak contrast to the violent, terrifying death suffered by his victim, Joy Stewart.

Stewart, 22, of West Alexandria, a small town about 20 miles west of Dayton, was about 30-weeks pregnant when McGuire raped her, choked her, and slashed her throat so deeply it severed both her carotid artery and jugular vein. At the same point, her unborn child died, too, probably in the woods in the rural area of Preble County where her body was found the next day by two hikers.

McGuire, 53, died from an injection of midazolam, a sedative, and hydromorphone, a morphine derivative. The combination, never before used in a U.S. execution, was chosen by the Ohio Department of Rehabilitation and Correction because pentobarbital, the single drug previously used, is no longer available. McGuire's attorneys argued unsuccessfully that the drugs could cause him to struggle for breath though something known as “air hunger,” and die painfully, a violation of a U.S. constitutional ban against cruel and unusual punishment.

Dennis McGuire's adult children, Amber and Dennis, along with Dennis’ wife, were among those who watched his execution. The inmate had a tearful visit with his children Carol Avery, the victim’s sister, also witnessed.

The execution had an unusually large media contingent on hand; in recent years, the media had dwindled away as executions became almost routine since Ohio re-instated in the death penalty in 1999. Outside, a handful of anti-death penalty protestors demonstrated as temperatures remain in the low 20s even after sunrise this morning.

UPDATE: Intriguingly, I have now seen that this CNN report on today's Ohio execution starts with this very different account of how it went:

Ohio inmate Dennis McGuire appeared to gasp and convulse for roughly 10 minutes before he finally died Thursday during his execution by lethal injection using a new combination of drugs, reporters who witnessed it said.

And the article I linked above from my own Columbus Dispatch as of 2:40pm now carries a much different headline and lead:

Killer struggles, gasps repeatedly under new 2-drug combination

Dennis McGuire struggled, repeatedly gasping loudly for air and making snorting and choking sounds, before succumbing to a new two-drug execution method today.

The 24-minute execution process was a “failed, agonizing experiment by the state of Ohio,” said one of the killer’s attorneys, Allen Bohnert, a federal public defender. “The people of the state of Ohio should be appalled by what was done in their name.”

McGuire’s death by lethal injection at 10:53 a.m. may have been marked by the “air hunger” that McGuire’s attorneys feared would occur from the combination of drugs used for the first time in a U.S. execution.

“What we suggested to the court did happen,” said Bohnert, who refused to speculate on whether McGuire suffered. He also would not say whether further legal action would be pursued under the U.S. constitutional ban against cruel and unusual punishment.

The question in the title of this post, which I am now posting to all the blogs in which I now participate, is my sincere reaction to this new Washington Post article headlined "DEA operations chief decries legalization of marijuana at state level." Here is the context:

The chief of operations at the Drug Enforcement Administration on Wednesday called the legalization of marijuana at the state level “reckless and irresponsible,” warning that the movement to decriminalize the sale of pot in the United States will have severe consequences.

“It scares us,” James L. Capra said, responding to a question from a senator during a hearing focused on drug cultivation in Afghanistan. “Every part of the world where this has been tried, it has failed time and time again.”

Capra’s comments marked the DEA’s most public and pointed criticism of the movement toward decriminalization in several states, where local officials see it as an opportunity to generate tax revenue and boost tourism....

Capra said agents have watched the early days of legal marijuana sales in Colorado with dismay. “There are more dispensaries in Denver than there are Starbucks,” he said. “The idea somehow people in our country have that this is somehow good for us as a nation is wrong. It’s a bad thing.”

Capra said that senior DEA officials have faced uncomfortable questions from law enforcement partners abroad. During a recent global summit on counter-narcotics in Moscow, he said, he and the head of the DEA were at a loss to explain the loosening drug laws. “Almost everyone looked at us and said: Why are you doing this [while] pointing a finger to us as a source state?” he said. “I don’t have an answer for them.”...

Capra said he worries about the long-term consequences of the national mood on marijuana, which law enforcement experts call a gateway to more dangerous drugs. “This is a bad experiment,” he said. “It’s going to cost us in terms of social costs.”

Let me begin by saying I respect all those who work in the DEA and other law enforcement agencies dealing with illegal drug issues, and I am certain all those who do this work have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will. But it is for that very reason that I ask this question about exactly what has DEA officials "scared": I sincerely want a much better understanding of what "social costs" of reform are being referenced here so that I can better assess for myself how I think these potential "social costs" of state-level marijuana reform stack up to the existing "social costs" I see due to current pot prohibition laws and norms.

That said, I think I might be able to help DEA officials avoid "being at a loss" to explain loosening drug laws in the US to their international friends in Moscow or elsewhere. Here is what I suggest DEA officials say: "The United States of American is an exceptional nation that, in President Lincoln's words, was "conceived in Liberty" and its citizens recently have become ever more skeptical about the growth of government's coercive powers and ever more concerned about paying high taxes for government programming perceived to be ineffectual. Thus, just as the people of America were the first to experiment seriously with a constitutional democracy (which has worked out pretty well), now some of the people of America are eager to experiment seriously with a regime of marijuana regulation rather than blanket prohibition."

This account of why polls show ever greater support for marijuana legalization is my sincere understanding of why so much drug reform activity is going on now in the United States. The current "Obama era" is defined by a period of relatively tight budgets, relatively low crime, and yet still record-high taxing-and-spending in service to criminal justice programming. These realities, especially in the wake of the Tea Party movement and other notable libertarian responses to the enormous modern growth of state and federal governments, have more and more Americans thinking we should be open to experimenting with a regime of marijuana legalization and regulation rather than blanket prohibition.

It is quite possible, as the DEA official suggests, that "this is a bad experiment." But even if it is, the experiment does not "scare" me, in part because I have a hard time fully understanding what potential increased social costs should make me or others truly "scared." More importantly, I have enormous confidence that, if the social costs of marijuana reform prove to be significant, the American people will realize pot reform is "a bad experiment" and will again change its laws accordingly. Indeed, this is precisely the experiences we have seen with our legal experiments with other drugs throughout American history:

roughly 100 years ago, we experimented with national alcohol Prohibition, but thereafter discovered this was bad experiment due to a variety of social costs, and then went back to a regulatory regime for this drug, and have in more recent times kept tightening our regulatory schemes (e.g., raising the drinking age from 18 to 21), as drunk driving and other tangible social costs of alcohol misuse have become ever more evident;

roughly 50 years ago, we experimented with nearly everyone have easy access to, and smoking, tobacco nearly everywhere, but thereafter discovered this was bad experiment due mostly to health costs, and then have been on a steady path toward ever tighter regulation and localized prohibition (e.g., The Ohio State University just became a tobacco-free campus), as lung cancer and other health costs of tobacco use have become ever more evident.

I emphasize these historic examples of American drug experimentation because it is certainly possible to lament the harms produced along the way or the enduring "social costs" of having tobacco and/or alcohol still legal. But it is also possible to conclude, as I do, that what makes America both great and special — dare I say exceptional — is that we persistently maintained our fundamental commitments to freedom, democratic self-rule and the rule of law throughout these experiments. Consequently, this modern era's new round of American drug experimentation has me excited and intrigued to watch unfold the next chapter of the American experience, and I am not "scared" by the marijuana reform movement because they it strikes me as a further vindication of our people's fundamental commitments to freedom, democratic self-rule and the rule of law.

But maybe I am just way too high on the idea of American exceptionalism to have a sensible and sober understanding off all the potential harms and "social costs" that are apparently scaring DEA officials. And, as I said above, I readily acknowledge that all those who work on the front lines of the drug war have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will. But, again, that it why the question in the title of this post is sincere: I genuinely and really want to have a much better understanding of what has DEA officials "scared" so that I can sensibly temper my excitement and optimism about modern marijuana reforms.

I fear that responses to this post could become snarky or ad hominem real quickly, but I hope all readers will tap into the spirit of my inquiry and really try to help me understand just what potential social costs of modern marijuana reform could lead those in the know to be "scared" as the quote above suggests. And I am posting this query in all five blogs I work on these days because I am eager to get wide input and as many diverse insights on this question as possible.

As reported in this local article, headlined "D.A. will take sex-offenders fight to state Supreme Court," a California prosecutor is planning to seek review in the Supreme Court of a lower state appellate court ruling that struck down local laws banning sex offenders from parks. Here are the details:

The Orange County District Attorney's Office plans to go to the California Supreme Court to defend local ordinances that ban registered sex offenders from city parks. A state appeals court on Friday struck down an Irvine law that barred registered sex offenders from city parks without written permission from police, a ruling that will become legal precedent. The court also struck down a similar Orange County law.

About a dozen other Orange County cities passed similar ordinances banning sex offenders from parks at the urging of District Attorney Tony Rackauckas. Rackauckas helped craft Orange County's law with county Supervisor Shawn Nelson. “Protecting children from dangerous sex offenders is an ongoing war, and we believe that it's one of the most important jobs we have at the D.A.'s (office),” said Susan Kang Schroeder, Rackauckas' chief of staff.

Janice Bellucci, president of California Reform Sex Offender Laws, said of the pending appeal. “I think they're foolish to do it. They're wasting taxpayer money.” Bellucci said her organization will urge Orange County cities that adopted similar legislation to pull the laws off their books or face a lawsuit.

Opponents criticize the ordinances as overly broad and an infringement on civil rights. They are “unenforceable,” Bellucci said. “These ordinances give a false sense of security to parents. They don't really protect their children from those who are most likely to assault their children,” Bellucci said....

The Orange County ordinance, which became a model for local cities, made it a misdemeanor for any registered sex offender to enter a county park, beach or other recreational area without permission from the Orange County Sheriff's Department. Those convicted would face six months in jail or a $500 fine.

In Friday's ruling, a panel of judges said state laws regulating sex offenders pre-empt any local ordinances. State law has long overseen sex-offender registration, the opinion said. State law already regulates where sex offenders may live and also identifies certain sex offenders who must be monitored by law-enforcement via GPS.

Offenders whose victims were younger than 14 may only enter parks where children gather with permission from their parole agents. The laws create a comprehensive system regulating sex offenders' daily lives, the court said. No outright ban on sex offenders in parks is included in state law, an omission that “manifests a legislative determination that such a ban is not warranted,” the court said. Any such local laws undermine the decisions of the Legislature, the court said.

NY Times debates "Should Drug Enforcement Be Left to the States?"

Vermont and a number of states have responded to increased drug use by emphasizing treatment and rehabilitation. Washington and Colorado have legalized recreational use of marijuana, and the federal government has taken a hands-off approach there. And the Justice Department has pledged a less severe approach to drug cases over all.

But with more states taking different approaches to drugs, should the federal government even prosecute local drug cases?

SCOTUS again struggling with state-federal crime intersection in Castleman

The Supreme Court today had oral argument in a challenging federal criminal case today, and SCOTUSblog has lots of great coverage of the issues and today's argument in US v. Castleman thanks to two post today by Amy Howe. Here and links to both SCOTUSblog posts, along with the start of the two lengthy entries:

Some federal laws impose or enhance penalties based on the defendant’s prior criminal convictions. For example, the Armed Career Criminal Act requires a longer sentence for a defendant who has been convicted of being a felon in possession of a firearm and has three prior convictions for “violent felonies.” Even though Congress generally defines terms like “violent felonies,” those definitions may not always match up with the elements of a crime under state or tribal law, requiring the courts to determine whether a particular state offense is a qualifying prior conviction for purposes of federal law.

That is the question before the Court this morning in the case of James Castleman, in United States v. Castleman. The federal government charged Castleman with a violation of a federal law, 18 U.S.C. § 922(g)(9), which prohibits someone who has been convicted of a “misdemeanor crime of domestic violence” from possessing a gun. The statute defines “misdemeanor crime of domestic violence” as a misdemeanor under federal, state, or tribal law (1) by someone who (as relevant here) has a child with the victim, which (2) “has as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.”

After first tackling the constitutionality of a Massachusetts law that imposes a thirty-five-foot buffer zone around abortion clinics in that state, this morning the Justices then turned to interpreting the U.S. Code – specifically, a provision that prohibits someone who has been convicted of a “misdemeanor crime of domestic violence” from possessing a gun. At the end of the oral arguments in United States v. Castleman, there seemed to be dissatisfaction with the interpretations advanced by both sides, possibly leaving room for a compromise suggested by Justice Elena Kagan.

"Congress should scrap drug sentencing 'enhancements'"

The title of this post is the headline of this notable new commentary by Jamie Fellner published earlier this week in The Hill. (Ms. Fellner is senior advisor to the U.S. Program of Human Rights Watch and author of this recent HRW report, An Offer You Can’t Refuse: How Federal Prosecutors Force Drug Defendants to Plead Guilty .) Here is how the commentary starts and ends:

When President Obama recently commuted the extraordinarily severe sentences of eight men and women convicted on federal crack cocaine charges, he rightly noted they had all been sentenced under an "unjust" law that mandated vastly harsher prison terms for crack than for powder cocaine offenses.

But the injustice in these cases wasn't limited to that disparity – nor even to fact that all were charged with offenses carrying harsh mandatory minimum sentences keyed solely to the type and amount of drug involved in their crime and not their role in the offense.

Prosecutors in half the cases used a 1986 sentencing provision that enables them to pursue sentences "enhanced" far beyond the mandatory minimum if the defendant has prior convictions. For defendants with one prior, their sentence can be doubled. If a defendant facing a ten-year minimum sentence has two prior drug convictions, the prosecutors can transform his sentence into life. The decision to use “enhancements” is in the prosecutor’s sole discretion and the courts have no choice but to impose the egregiously harsh enhanced sentences.

Take Stephanie Yvette George, one of the eight. She was convicted in 1997 because, as the judge said, she was the “bag holder and money holder” for crack-dealing boyfriends. She had been looking at a ten-year mandatory minimum sentence on crack conspiracy charges – already too severe a punishment for a bit player in the drug business. But prosecutors chose to increase her sentence to life because she had two earlier convictions for selling a total of $160 worth of crack – offenses for which she served nine months in a work-release program. Because there is no parole in the federal system, her life sentence was a sentence to die behind bars.

As George’s case illustrates, even a small-time drug offender with some petty prior convictions can be sentenced to life if a prosecutor decides to trigger the sentencing enhancement. Because mandatory sentences take no account of an offender's role in a crime, ten years is the minimum most street level dealers, bit players, and even couriers face unless they can secure a lower sentence through a plea agreement. Moreover, the prior convictions that turn ten years into a life sentence could have happened long ago, the defendant may never have been sentenced to prison (e.g. the sentence was for probation), and the crimes could have been as minor as simple possession of marijuana for personal use.

Some prosecutors use the enhancement provision in every case in which it's applicable. Most, however, use the threat of enhancements to strong-arm defendants into pleading guilty -- a threat they make good on if the defendant refuses. As one former prosecutor told me, "We would only invoke [the enhancement]…to penalize a defendant for the audacity of going to trial."...

In August 2013, Attorney General Eric Holder instructed federal prosecutors to avoid seeking sentencing enhancements in drug cases unless the circumstances warranted such severe sanctions. But he provided such broad criteria for determining whether such circumstances exist that, as Judge John Gleeson of the Eastern District of New York has pointed out, any capable prosecutor who wants to seek the enhancement can justify doing so.

The attorney general should prohibit prosecutors from threatening or seeking greatly increased sentences simply because defendants refuse to plead. But as long as the drug sentencing enhancement provision remains on the books, prosecutors are likely to use it. Congress should abolish the provision as part of a broader reform to the regime of mandatory minimum sentencing laws that have sent tens of thousands to prison with sentences that are neither just nor fair.

New highlights with new voices coming from "Marijuana Law, Policy and Reform"

As those who regularly check out my Marijuana Law, Policy and Reform already know, I now have a terrific trio of guest-bloggers adding their insights and perspective in that space: Professor Sam Kamin (hailing from the University of Denver Sturm College of Law); Professor Alex Kreit (hailing from the Thomas Jefferson School of Law); Professor Robert Mikos (hailing from Vanderbilt Law School). As I noted in this post over there, aided by their collective help and insight and wisdom, I am hoping to take the Marijuana Law, Policy & Reform blog to "the next level" by having the blog prioritize more original commentary and less reporting (especially now that the MSM is finally reporting seriously on a range of marijuana issues). And here is a sampling of some of the new highlights:

January 14, 2014

Clemency's consequences: "Clarence Aaron, almost free"

The title of this post is drawn from the headline of this notable new commentary by Debra Saunders, who is described as the "San Francisco Chronicle's token conservative columnist." Because the piece is so moving (and pretty short), I am reprinting a lot of it:

Last month, President Obama did a good deed commuted the sentence of eight crack cocaine offenders, including Clarence Aaron, a first time nonviolent drug offender sentenced to life without parole. Readers may have thought Aaron would be home by Christmas; instead the Dec. 18 order prompted the Bureau of Prisons to move Aaron to a minimum-security camp [and then to a halfway house].... He is set for supervised release on April 17.

I had been a bit worried about what would happen to Clarence in prison as he awaited release. At first, when he got the news, he didn’t tell other inmates. But it was on TV, and everyone found out. Rather than stoke resentment, his commutation brought hope to inmates who had given up. “The atmosphere of the whole institution, it changed,” Clarence told me. “Everybody was happy… a lot of people walking around with that spark in the eye.”

When he got moved to a minimum-security camp, it was the same thing. “People knew I was coming to the camp before I knew I was coming to the camp.” And: “They were amazed to hear how God’s hand works.”

It was not easy in prison. Clarence faced what was essentially a death sentence — life in prison until he died — among repeat felons serving shorter time. “The first day I got into prison,” Clarence told me, “I said, ‘What put me in this bad position?’” His admittedly criminal actions started with money problems. So he got a job in prison and started saving money. He put together a plan for his future. He studied the Bible, took college courses, followed the rules....

What does Clarence want to do first? His “baby sister” Stephanie died of cancer in 2005. With his mother Linda, Clarence wants to visit her grave. Later he wants to get a job, and get the documents he needs to obtain a driver’s license.

Where does he want to be in five years? He wants a family and he wants to be established with a “meaningful career.” Are you bitter? I ask. He answers: “No, actually I’m not. I’m happy. This is a new day for me. My Commander in Chief gave me a new life.”

You be the federal judge: what sentence should the Beanie Babies billionaire get for tax evasion?

As reported in this short AP article, today "the billionaire creator of Beanie Babies is in a Chicago federal courtroom for his sentencing on a tax evasion charge." Here is more:

H. Ty Warner could get up to five years in prison Tuesday for evading taxes on $25 million in income. The 69-year-old Warner was told when he pleaded guilty last year that he would have time at his sentencing to apologize for stashing money in Swiss bank accounts.

Warner's attorneys have asked the judge for a sentence of probation, not prison. They pointed to Warner's unhappy childhood and his charity work. Prosecutors say Warner should spend some time in prison, though they haven't recommend how much. They also say his philanthropy shouldn't be "a get-out-jail card."

Though perhaps not authorized by federal law, my proposed punishment for this billionaire would be a week in jail, a maximum (lifetime?) term of supervised release (for which he has to pay the costs), plus a fine of $100 million (four times the amount of income he tried to hide). According to Forbes here, Warner's net worth is 2.6 billion, and thus a $100 million fine for him is the equivalent of only a $100,000 fine for someone worth $2.5 million. Ergo, such a fine should clearly not be considered constitutionally excessive for Warner and it should better help deter rich folks from illegally trying to avoid paying their fair share.

Importantly, the maxed out term of supervised release is a big aspect of my proposed ideal sentence. Though some may think a few years in prison for a white-collar offender is more onerous than other punishments, I suspect a billionaire like Warner would be much more bothers by forever being subject to control of his liberty by probation officers. (I would also like to order Warner to a community service requirement of coming to my house each year to clear the dust off my kids' stuffed animals, but I am not sure I would be able to get away with such a term of service even if I was a federal judge.)

UPDATE: This Reuters article indicates that Warner's sentencing outcome in federal court on Tuesday is resulting in him paying for his nonviolent crime in a lot of ways, but not with any time in prison:

The billionaire creator of Beanie Babies, Ty Warner, will serve two years of probation, including mentoring high school students, following his guilty plea on a tax evasion charge, but no jail time, a federal judge ruled on Tuesday. Warner, 69, who pleaded guilty in October, told U.S. District Court Judge Charles Kocoras in Chicago that his crime was the "biggest mistake" of his life. Warner already had agreed to pay a civil penalty of nearly $53.6 million.

Ranked as the 209th richest American by Forbes with a listed net worth of $2.6 billion in 2013, Warner failed to report more than $24.4 million in income and evaded nearly $5.6 million in federal taxes from millions hidden in Swiss bank accounts, according to Chicago prosecutors.

Prosecutors had argued that Warner should serve time in jail given the extent of the cover-up, and federal guidelines called for up to five years in prison. "I am truly sorry," said the slightly-built Warner, who wore headphones to compensate for hearing loss. He told Kocoras the letters of support he received "made my feelings of shame and embarrassment that much more unbearable."

Kocoras cited Warner's many acts of charity before imposing probation rather than prison. Kocoras said he had reviewed letters from people helped by the billionaire, including a woman with a kidney disease Warner had stopped to ask for directions. After learning of her condition, Warner paid for her treatment. "Society will be best served by allowing him to continue his good works," Kocoras said.

Warner was sentenced to at least 500 hours of community service, which will include mentoring students at Leo High School, a Catholic boys' school in a poor, mostly African-American neighborhood in Chicago....

The federal charge to which Warner pled guilty alleged that, in 2002, Warner earned more than $3.1 million through investments held in his UBS account, but did not tell his accountants and failed to report it on his tax form.

Two professorial perspectives on the USSC's proposal to reduce all federal drug sentences

In my view, last week brought one of the very biggest (and yet, so far, one of the least discussed) tangible developments in federal sentencing reform in the past few years. Specifically, as reported here, the US Sentencing Commission voted to publish proposed amendments to the federal sentencing guidelines which include an across-the-board reduction in the sentences recommended for all federal drug offenses. I am pleased now here to share the insightful reactions to this important development coming from two insightful junior professors: Professors Kevin Bennardo and Todd Haugh.

Because Professor Haugh's comments are a bit shorter and more thematic, I will reprint his insights first:

First off, I agree wholeheartedly that this is a very important vote and a “really big deal.” But the reason I feel that way is not necessarily because it lowers penalties for drug trafficking offenders. While I think the Commission is right to make the proposal and I certainly support it — drug penalties have been too harsh for too long — what’s more important to me than the specifics of the proposal is the willingness of the Commission to make it at all. Let me explain.

According to the Commission’s press release (the actual language of the proposed amendment is available, although it’s hard to find — see here), the proposal will lower the base offense levels in the drug table by two across the board. That’s nothing to sneeze at because every two level increase equals about another 20% on the final sentence; at the higher sentencing levels, this is significant time. Yet, with mandatory minimums and prosecutorial charging practices, the Commission believes the prison population will be reduced only by around 6,500 inmates over five years. With approximately 100,000 federal inmates currently serving time for drug offenses, this reduction, although welcome, is as the Commission admits, “modest.”

But what isn't modest is the Commission’s increasing willingness to propose sentencing reform, i.e., sentencing reduction. This drug amendment proposal is the most recent example, but there are others. Last September, the Commission urged Congress to reduce mandatory minimums for drug offences, make the Fair Sentencing Act retroactive, and expand the safety valve. Around the same time, the Commission held a symposium on economic crimes and appeared to be genuinely considering the ABA’s proposal to remake the fraud guideline, which would lessen the impact of the loss calculation. And, a little over a year ago, the Commission suggested aligning the penalties for the receipt and possession of child pornography (a majority of judges call the penalty levels for receipt cases “excessive”). What’s important about these proposals is that every time the Commission comes out in support of (or even hints at) a sentencing reduction, it runs the risk of creating a “shadow guideline” — a hypothetical, less harsh version of a given guideline that, regardless of whether it is ultimately adopted, defense attorneys will argue should sway the court in the post-Booker, variance-driven regime. This is exactly the sort of thing your original post suggests, and savvy defense lawyers will do it. The Commission’s concern over creating shadow guidelines (and over the related Congressional reaction) has probably scuttled a number of proposals over the years to reduce unfair and disparity-producing guidelines. I am happy to see the Commission setting aside the concern of shadow guidelines and Congressional reaction and forging ahead to proactively improve the guidelines as a whole. While I’m sure some will argue this proposal does too little or comes too late, in my eyes it’s an important and continuing step in the right direction, and it shows a pattern of real leadership. So, I say go ahead and get excited — even if this amendment doesn't go through for some reason, it sure seems that there will be more positive reforms to come.

And now, here are Professor Kevin Bennardo's insights, which digs very effectively into the nuts and bolts of what the USSC's proposed amendment really does and means:

First, thanks to Doug Berman for the opportunity to share my thoughts on his forum. Second, I very much support the U.S. Sentencing Commission’s preliminary proposed amendment to reduce (most of) the base offense levels in the Drug Quantity Table by two levels. I agree with Doug’s assessment that this proposal is huge news.

However… the proposed amendment brings two hang-ups to my mind — one with the existing structure of the Drug Quantity Table and another with the mechanics of the proposed amendment:

(1) First, the proposed amendment continues to fundamentally bind the Drug Quantity Table to the mandatory minimum sentences set forth in 21 U.S.C. § 841. It simply (and laudably) knocks the levels down two pegs. Under the proposed amendment, offenders in criminal history category I who distribute a drug quantity that triggers a five year mandatory minimum will receive a base offense level of 24, leading to a range of 51-63 months (the lowest range that encompasses the five year mandatory minimum) rather than the current range of 63-78 months under offense level 26. Likewise, offenders facing a ten year mandatory minimum will start from a base offense level of 30, leading to a range of 97-121 months (the lowest range that encompasses the ten year mandatory minimum) rather than the current range of 121-151 month under offense level 32.

As I’ve written elsewhere, extrapolating the base offense levels in the Drug Quantity Table from the statutory mandatory minimums works unfairness for those offenders who are not actually subject to a statutory mandatory minimum sentence. Especially after the Supreme Court’s ruling in Alleyne v. United States and Attorney General Holder’s subsequent directive to federal prosecutors to structure indictments in such a way so as to avoid the operation of statutory mandatory minimum sentences on certain nonviolent, low-level drug offenders, we’ll only see increasing numbers of defendants who are not subject to statutory mandatory minimum sentences even though the sentencing court may find by a preponderance of the evidence that the offender distributed a quantity of drugs that would have triggered a statutory mandatory minimum had it been charged in the indictment and proven beyond a reasonable doubt. These offenders deserve to be sentenced under a Drug Quantity Table that is wholly uncoupled from the mandatory minimum sentences written into the federal drug statutes, particularly in the wake of the Commission’s recent recommendation to Congress to consider lowering statutory mandatory minimums. By continuing to extrapolate the base offense levels in the Drug Quantity Table from the statutory mandatory minimums, the proposed amendment fails to address this unfairness.

(2) Second, the proposed amendment to the Drug Quantity Table isn’t truly an “all drugs minus two” revision (like I expected it would be when I first read the press release). Under the proposed amendment, the lowest base offense level in the Drug Quantity Table remains at 6 and the highest base offense level remains at 38. Thus, offenders who distribute the smallest and largest drug quantities will see absolutely no change in their guideline calculations under the proposed amendment. They won’t receive any “minus two” treatment.

For example, an offender who distributes less than 250 grams of marijuana receives base offense level 6 under the current version of the Drug Quantity Table. Under the proposed amendment, that offender would still receive a base offense level of 6. (The difference is that under the amended version, all offenders who distribute up to one kilogram of marijuana fall within base offense level 6.) If the effect is to otherwise shift all base offense levels down by two, why not carry through with the same result at the margins of the Drug Quantity Table? Why not just retain the same drug quantities as the current Drug Quantity Table and shift the whole thing down by two levels so that the smallest quantities carry a base offense level of 4 and the largest quantities max out at level 36?

While the difference between base offense level 4 and 6 may not be significant to an offender in criminal history category I (although it might be if the offender has other upward offense level adjustments), the difference can be meaningful for an offender in more serious criminal history categories. For example, at offense level 4, a criminal history category III offender is subject to a guidelines range of 0-6 months and falls in Zone A of the Sentencing Table. But at offense level 6, the same criminal history category III offender is looking at a guidelines range of 2-8 months and falls in Zone B. For that offender, the difference between offense levels 4 and 6 is a difference of a guidelines sentence that requires no confinement and a guidelines sentence that requires at least two months of community confinement or home detention under section 5C1.1. (Similarly meaningful differences obtain for offenders in criminal history category VI, who get pushed out of Zone B and into Zone C with the jump from offense level 4 to 6.) If the rest of Drug Quantity Table is to be reduced by two levels, why not drop the smallest drug quantities down to offense level 4?

January 13, 2014

As reported in this new AP piece, it looks now like Ohio is going to be able to go forward with its first planned execution of 2014. Here is why I was not sure about this before today:

A federal judge today refused to stop the upcoming execution of a condemned Ohio killer facing a never-tried lethal injection process that the inmate’s attorneys say will cause him agony and terror. Judge Gregory Frost’s ruling moved Dennis McGuire one step closer to execution by the two-drug method developed after supplies of Ohio’s former execution drug dried up. Gov. John Kasich and the Ohio Parole Board have both rejected McGuire’s plea for clemency.

The judge said McGuire had failed to present evidence that he would suffer breathing problems alleged by his attorneys — a phenomenon known as “air hunger” — and said the risk to McGuire is within Constitutional limits. “The evidence before this court fails to present a substantial risk that McGuire will experience severe pain,” Frost said.

The judge rejected a similar request last year by death row inmate Ronald Phillips, who was set to become the first to die by the new method until Kasich delayed his execution to study the feasibility of Phillips’ donating organs to family members.

McGuire, 53, is scheduled to die Thursday for the 1989 rape and fatal stabbing of Joy Stewart in Preble County in western Ohio....

McGuire also asked the U.S. Supreme Court to delay the execution on the grounds that the jury that sentenced him to die never got to hear the full extent of his chaotic and abusive childhood. In the lethal injection appeal, McGuire’s lawyers had asked Frost to delay the execution while they challenge the proposed two-drug system....

The state opposed any delay, presenting evidence that disputed the air hunger scenario. They called McGuire’s appeal an eleventh-hour request that was years too late....

Supplies of Ohio’s former execution drug, pentobarbital, dried up as its manufacturer put it off limits for executions. Ohio’s Department of Rehabilitation and Correction plans to use a dose of midazolam, a sedative, combined with hydromorphone, a painkiller, to put McGuire to death.

Other death penalty states are being challenged by supply shortages. Missouri gave up attempts to use propofol over concerns the move could create a shortage of the popular anesthetic if the European Union, which opposes the death penalty, restricted its export. In Georgia, the state’s attempt to use a non-federally regulated dose of pentobarbital is the subject of a lawsuit.

The combination of drugs Ohio intends to use has never been used in a U.S. execution. They are included in Kentucky’s backup execution method, and Florida uses midazolam as part of its three-drug injection process.

Could new, creative prison architecture be a key to unlocking incarceration nation?

The question in the title of this post is prompted by this very interesting article forwarded to me by a helpful reader headlined "This Radical New Prison Design Could Prevent Prisoners From Coming Back." Here are the highlights (though I recommend that readers click through to see lots of pictures and useful links):

A recent topic that has been receiving attention among architects is the issue of designing prisons. The increased awareness of the problem has been spearheaded by Raphael Sperry, founder of Architects/Designers/Planners for Social Responsibility, who has been campaigning to have the AIA forbid members from designing execution chambers or solitary confinement units. At the other end of the scale, Deanna VanBuren, a principle of FOURM Design Studio and a member of ADPSR herself, has championed ‘restorative justice’, an approach to the justice system which emphasizes rehabilitation and reconciliation in order to prevent people from re-offending.

Now Glen Santayana, a student at Harvard’s Graduate School of Design, has used his thesis project to add to this debate, designing PriSchool — a prison which both integrates with a school of criminology and is embedded within the community. Could this radical approach to prison design really be an answer to the stretched prison system in the US (and elsewhere)?...

PriSchool is designed precisely for those non-violent offenders who struggle to stay on the right side of the law when released. Situated in a Brooklyn neighborhood surrounded by “million-dollar blocks” — city blocks with such high crime that the state is spending over a million dollars a year to incarcerate their residents — the prison/school hybrid rethinks what a prison can achieve, positing it as a place where prisoners and students can learn from each other, and where criminals can be rehabilitated in preparation for their return to society.

The complex is split into four buildings, consisting of (from West to East) the school of criminology, the prison itself, a ‘pre-release’ building and a community center. The form of these buildings is warped to show where the functions of each building intertwine, with bridges between them. Prisoners and students get the opportunity to take part in lessons together, giving students the chance to get a sense of the real-life situations which they study, and offering the prisoners intellectual stimulation and a deeper understanding of the legal structure in which they are entangled. This promotes a sense of dignity and empowerment which can reduce their chances of re-offending.

In the pre-release building, inmates whose sentences are nearing an end get the opportunity to learn new skills, gaining access to metal and wood workshops, computer labs and a range of other environments where they can learn hands-on, employable skills. Finally, the community center is posited as a peace offering to those members of the wider community who are skeptical about being in a neighborhood arranged around a prison; it is hoped that the benefits to the community will be greater than the stigma of the prison, and that this stigma will also eventually recede over time.

A few 2014 headlines reflecting the state of, and debates over, the death penalty

I have not done too many death penalty posts lately because the subject (and the usual comments it generates) often gets tiresome for me, and lots and lots of other coverage is always provided by the MSM and new media outlet. But because I will be starting a death penalty until in my Sentencing Law course later this month, I have been reading more carefully my news feed on the topic lately. And here are a few recent reports and commentary pieces that may serve as a bit of a summary of some capital punishment topics making the papers in early 2014:

Does Gov. Christie kerfuffle suggest being a bully is always a big part of a former prosecutor's playbook?

I have been thinking about the question in the title of this post for a few days, and a helpful reader altered me to this post at Above the Law talking through a similar line of thinking. The post by defense attorney Joe Patrice is titled "Governor Chris Christie Did What We All Should Have Expected From An Old Prosecutor," and here are excerpts from a lengthy and amusing screed against Christie and all modern prosecutors:

Unless you’re living under a rock or stuck in traffic on the George Washington Bridge, you know that N.J. Governor Chris Christie spent [Thursday] digging himself out of the Fort Lee traffic scandal in the most Jersey of manner — by placing a proverbial bullet in the back of the neck of one of his most trusted allies Tony Soprano-style. He even invited the media over to the Bada-Bing for a couple of hours after he did it.

Deputy Chief of Staff Bridget Kelly took the rap for closing lanes on the GWB and creating a traffic snarl for Fort Lee residents after a smoking gun email emerged where the staffer seemingly ordered David Wildstein, himself a once highly-paid Christie staffer who resigned last month, to stop up the bridge to make life miserable for Fort Lee. The mayor of the town — a Democrat — had failed to fall in line and endorse the Republican Christie in his re-election campaign, and Kelly’s email outlined the chosen means of retaliation. It seems dumb, but people may have died over this issue.

Liberal columnists are calling Christie basically an overfed Pol Pot and conservatives are comparing this — because they cherish beating their dead one-trick pony — to Benghazi. But whether Christie was directly involved in this scandal or not — and so far the digital paper trail seems to begin with his mild-mannered aide showing uncharacteristic initiative and ends with a high school crony whom Christie put in charge of the bridge — this scandal falls somewhere between unsurprising and utterly inevitable.

Christie is a former prosecutor, serving as a U.S. Attorney from 2002 until 2008. The modern prosecutor is armed with the luxury to exact petty, brutal revenge on any and all who cross him or her, and this is the mentality that Christie brought into the Governor’s Mansion. Indeed, he made this mentality his political calling card.

Oh, and will this matter in 2016? Yes, this will matter in 2016. Sort of. Or sort of not. Look, we’re getting ahead of ourselves....

[The Gov. Christie administration] atmosphere flows directly from the arrogance of a prosecutorial office. Chris Christie frigging loves being a prosecutor. He talks about it all the time. He gets off bullying journalists who ask him simple goddamned questions by pointing out that he’s a prosecutor....

[U]nabashed imperiousness is not just a product of Christie’s thuggery; rather, it flows from the modern prosecutor. More and more, society judges prosecutors by their ability to make public spectacles of securing big prison time for low-hanging fruit — even to the exclusion of taking on the harder cases. Acting as a neutral purveyor of justice has fallen so far to the wayside that defense lawyers are legitimately shocked when prosecutors adhere to their constitutional duties. They are the masters of their own little kingdoms, with nearly limitless power over the fates of all those who brush up against the criminal justice system in their domain. No wonder they get a little drunk with power.

Armed with extensive discretion and so many potential charges to bring, prosecutors can, and do, construct draconian threats by heaping additional and enhanced charges on defendants who refuse to play ball. Plea deals are no longer limited to “going up the chain,” as the masterminds of wrongdoing are now given deals to rat out their underlings for harsher punishment....

Prosecutors are incentivized to use all of their vast power to get more people convicted, and they’re willing to use a bazooka to kill a cockroach if it advances that ball. Listen, I spent a lot of time working with current and former prosecutors. And whether I represented a cooperator working with the government or I was sitting on the same side as a defense lawyer freshly out of the prosecutor’s office, it always disturbed me how quickly they would leap to asking “how do we screw them?” over the most minor of slights.

When this is the model of success that propels you into office, how does one reset? In Christie’s case, he never eschewed this model of leadership. He may well have directly ordered these lane closures, but even if he didn’t, the mentality he has championed in his meteoric rise to prominence invited this sort of behavior. And now we’re supposed to be forgiving when he says his deputy acted alone when plotting to make life hell for someone unwilling to kowtow to the Governor’s overtures?

More than 65 years ago, Congress enacted a short statute (codified at 28 U.S.C. § 2255) to even the habeas corpus workload among the federal courts. That statute included a “Savings Clause,” which allows prisoners to challenge their convictions and sentences in a federal habeas petition when § 2255 is “inadequate or ineffective” for the task. Since that time — and with increasing frequency — the U.S. Courts of Appeals have developed wildly varying tests to determine when and how § 2255’s Savings Clause applies to prisoners’ attempts to bring federal habeas petitions under 28 U.S.C. § 2241.

In their attempts to understand the Savings Clause’s scope and meaning, the circuit courts have found a myriad ways to navigate the gap between § 2255 and § 2241 and find a path for a petitioner to bring her § 2241 petition. However, in undertaking their task, the circuit courts have created kaleidoscopic chaos that impairs the ability of prisoners, counsel, and the federal courts themselves to understand when and how a federal prisoner can pass through the Savings Clause and challenge his conviction and sentence in a § 2241 petition.

This article reveals the patchwork of Savings Clause jurisprudence created by the circuit courts. Then, using several realistic hypotheticals, the article explores how geography, circuit precedent, and the nature and timing of intervening interpretations of criminal statutes determine whether and when prisoners who are serving sentences for acts that the law did not criminalize can bring a federal habeas petition and get out of prison. Through the use of these hypotheticals, the reader learns how the fates of federal prisoners (who appear to be similarly-situated) vary wildly depending on such things as where they were sentenced, where they are presently confined, and how and when the court system’s understanding of the underlying criminal statute changed.

Notable new data showing pot arrests way down in Colorado after reforms

This new Denver Post article, headlined "Marijuana case filings plummet in Colorado following legalization," spotlights one notable criminal justice metric that has been dramatically impacted by legal developments in the Centennial State. Here are some details:

Charges for all manner of marijuana crimes plummeted in the months after Colorado voters legalized limited possession of cannabis for people over 21.

According to a Denver Post analysis of data provided by the Colorado Judicial Branch, the number of cases filed in state court alleging at least one marijuana offense plunged 77 percent between 2012 and 2013. The decline is most notable for charges of petty marijuana possession, which dropped from an average of 714 per month during the first nine months of 2012 to 133 per month during the same period in 2013 — a decline of 81 percent.

That may have been expected — after all, people over 21 can now legally possess up to an ounce of marijuana. But The Post's analysis shows state prosecutors also pursued far fewer cases for marijuana crimes that remain illegal in Colorado. For instance, charges for possessing more than 12 ounces of marijuana dropped by 73 percent, and cases alleging possession with intent to distribute fewer than 5 pounds of marijuana dipped by 70 percent. Even charges for public consumption of marijuana fell statewide, by 17 percent, although Denver police have increased their number of citations issued for public consumption.

While marijuana prosecutions against people over 21 declined, so did prosecutions against people under 21, for whom all marijuana possession remains illegal except for medical marijuana patients.

Colorado Attorney General John Suthers said he thinks the drop in cases may be due to police not wanting to parse the complexities of the state's marijuana law. "I think they've kind of thrown their arms up in the air," he said.

Marijuana advocates, meanwhile, praised the drop in prosecutions — even for things that remain illegal under state law — because it lessens what they say is the racially biased impact of marijuana enforcement. A report last year from the American Civil Liberties Union found that blacks in Colorado were arrested for marijuana crimes at a rate nearly double that of whites. Overall, the report found arrests for marijuana possession in 2010 made up more than 60 percent of all drug-offense arrests.

"We're talking about not only saving the state time and money," said Art Way, a policy manager in Colorado for the Drug Policy Alliance, a supporter of legalization, "but we're no longer criminalizing primarily young adults, black and brown males primarily, with the collateral consequences of a drug charge."

The Post's analysis is not a comprehensive look at marijuana prosecutions in Colorado because prosecutors can also file cases in municipal courts, which aren't tracked by the data provided. Even though Colorado voters partially legalized marijuana for adults in 2012, there are still numerous marijuana crimes on the books. Possession of more than an ounce, cultivation of more than six plants and sales without a special state license all remain illegal and can be punished.

But Tom Raynes, the executive director of the Colorado District Attorneys Council, said the state's new marijuana laws are likely making it tougher for police to crack down on the remaining marijuana crimes. Because some marijuana possession and use is now legal, Raynes said that means police are no longer allowed to investigate in depth purely because they smell pot. "Just because your car smells like marijuana doesn't give an officer enough probable cause to initiate an arrest or a search," Raynes said....

[T]here is no evidence so far that Colorado's new laws on marijuana have resulted in a dramatic reduction in caseloads for prosecutors or police. Denver police, for instance, recorded only 3 percent fewer arrests for any crime in the first 11 months of 2013 when compared with the first 11 months of 2012.

What also appears relatively unchanged is the treatment of petty marijuana-possession charges: It is far more likely that those charges will be dismissed by either a judge or a prosecutor than it is the charges will result in a finding of guilty for the defendant, according to the data. For the charges filed in September 2012, 79 percent were ultimately dismissed. In September 2013, it was 84 percent.

But Raynes said those similarities belie the uncertainty police and prosecutors now feel when approaching marijuana cases. "With small quantities especially," he said, "I think law enforcement feels like they don't know which way to turn."

Though I obviously cannot speak for the blue line on the ground in Colorado, it seems to me that these data show law enforcement in the state knows exactly which way to turn: away from wasting time and energy and other scarce law enforcement resources on low-level marijuana matters and instead focusing more time and energy and other scarce law enforcement resources on more serious and harmful matters.